Defendant objects to the total sum to which plaintiff claims he is entitled, raising numerous objections. Specifically, defendant argues that (1) the itemized expenses for the appeal, including printing and binding costs, are excessive and should be reduced; (2) the award should only include attorneys' fees incurred for the prosecution of the case before the district court; (3) the amount plaintiff paid its outside counsel for their work on appeal was unreasonable; (4) the hours claimed by plaintiff's in-house counsel are not supported by contemporaneous time records; and, (5) the fees plaintiff paid to investigators are excessive and are not supported by contemporaneous time records.

Defendant also raises two general objections to plaintiff's claim for costs and attorneys' fees. First, defendant contends that the court should not award attorneys' fees in excess of $ 20,000, arguing that the customary rule when awarding attorneys' fees is that the amount reasonably in controversy should be the ceiling on the fees that may be awarded. Diamond D. Enterprises USA, Inc. v. Steinsvaag, 979 F.2d 14, 19-20 (2d Cir. 1992), cert. denied, 508 U.S. 951, 124 L. Ed. 2d 660, 113 S. Ct. 2442 (1993). He urges the court to use $ 20,000 as a ceiling when conducting its reasonableness inquiry into plaintiff's request for costs and fees (Item 44, pp. 16-17).

The Steinsvaag rule does apply, and therefore, the court will heed the Second Circuit's guidance in fashioning the appropriate fee award. Even though the Second Circuit has directed this court to award costs and attorneys' fees to plaintiff, the court will exercise its equitable powers to adjust the cost/fee awards so that they remain reasonable.

Second, defendant argues that the court should consider his limited financial circumstances and other obligations in determining the appropriate cost/fee awards (Item 44, pp. 24-26). He will not be able to pay the huge attorneys' fees plaintiff chose to pay to prosecute its case. He cites Zimmerman v. Bishop Estate, 25 F.3d 784 (9th Cir.), cert. denied, 513 U.S. 1043, 130 L. Ed. 2d 543, 115 S. Ct. 637 (1994), for authority that a court may properly consider a party's limited financial circumstances when awarding attorneys' fees. Defendant argues that while plaintiff is a large corporation which can afford to pay large attorneys' fees, defendant is a retired federal employee who is not blessed with unlimited financial resources. He contends that while he takes responsibility for his actions in selling the two descramblers, his life should not be financially ruined for this relatively minor infraction. He further notes that § 605(e)(3)(B)(iii) explicitly provides for reasonable attorneys' fees, and asserts that it would be unreasonable for the court to require a retired janitor in Buffalo to pay for the services of a multinational law firm in New York City, as well as the efforts of four other attorneys (Item 44, pp. 25-26). Defendant notes that in TCI of Illinois, Inc. v. Carpenter, 849 F. Supp. 326, 328 (N.D.Ill. 1994), the court limited its award of attorneys' fees so that they were "meaningful as a sanction in light of [the defendant's] modest circumstances without being punitive."

Defendant is approximately 68 years old, and his wife is 70 years old and deaf (Item 43, P 17). He is now retired, and he and his wife exist on their pensions and Mrs. Noel's Social Security payments (Id., P 18). The Noels' assets are limited to their residence, a boat, and two motor vehicles (Id., P 19). It would be unreasonable to bankrupt defendant by forcing him to reimburse plaintiff fully for its expensive team of attorneys and investigators. Defendant is already facing a stiff penalty for his actions in the form of the mandatory statutory damages. The bill for costs and attorneys' fees is over five times larger than the damages awarded. Defendant clearly does not have the resources to pay this large bill.

Although defendant is correct to bring Local Rule 39 to the court's attention, the rule is limited to the cost for copies of appendices and record excerpts. Fed. R. App. P. 39(c) instructs that the "court of appeals shall fix the maximum rate at which the cost of printing or otherwise producing necessary copies of briefs, appendices, and copies of records authorized by Rule 30(f) . . . [and] such rate shall not be higher than that generally charged for such work in the area where the clerk's office is located." The Second Circuit has not explicitly set a maximum dollar amount for the per page printing costs for briefs submitted in conjunction with an appeal as it has set for appendices. See Furman v. Cirrito, 782 F.2d 353, 356 (2d Cir, 1986) (distinguishing between the amount recoverable for the printing costs of appendices from the amount recoverable for the printing costs of appellate briefs). Plaintiff has failed to demonstrate that the approximately $ .40 per page that it paid Counsel Press for printing the appellate brief and the reply brief is not higher than that generally charged for such services in Manhattan, the area where the clerk's office for the Second Circuit Court of Appeals is located. Having failed to meet its burden, the court finds that plaintiff would not be entitled to recover the full amount it seeks.

As for the $ 3,977.90 in costs referenced in Mr. Primps' affidavit, plaintiff correctly notes that it is entitled to recover "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." U.S. Football League v. National Football League, 887 F.2d 408, 416 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1022, 110 S. Ct. 1116 (1990). See also Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987) (attorneys' fees include expenses that are incidental and necessary to the representation). Plaintiff attests that the $ 3,977.90 at issue included the cost of telephone calls, telex communication, photocopying, postage, on-line legal research, and other incidental costs. Plaintiff has provided supporting documentation that itemizes these costs (See Item 35, Exhibit B). The court does not find these costs to be unreasonable on their face; consequently, plaintiff would be entitled to recover the $ 3,977.90.

2. Attorneys' Fees for Prosecution at Trial

Plaintiff seeks to recover $ 9,665.00 for attorneys' fees and expenses it paid to the Law Office of Daniel J. Lefkowitz for its prosecution of this case at trial (Item 35, P 17(e)). Although defendant concedes that the hourly rates charged by Mr. Lefkowitz are comparable to those normally charged in the Western District of New York, defendant argues that the court should not award the full amount requested by plaintiff for these services because the total number of hours Mr. Lefkowitz claims his office spent prosecuting this complaint is unreasonable (Item 44, pp. 11-12). Defendant contends that the total of 83.75 hours is excessive due to the relative simplicity of the matter, the fact that the Lefkowitz office specializes in cable theft prosecutions, and the fact that this case was resolved through summary judgment (Id.). Defendant notes that in 45 Midland Enterprises, 858 F. Supp. at 45, which also involved a § 605 suit, the Law Office of Daniel Lefkowitz was only awarded attorneys' fees for 28.25 hours, for a total of $ 3,995. That case was decided through a default judgment in favor of the plaintiff rather than summary judgment; nevertheless, defendant contends that this difference does not justify a fee increase of over 150 percent. (Item 44, p. 13).

Plaintiff correctly distinguishes Lander from this case, since in Lander there was no basis for awarding expenses relating to plaintiff's appeal since the appellate court's decision was not in favor of the plaintiff, but instead affirmed the district court's finding that the defendant was not in contempt of court. In Lander, the losing party's conduct was not in violation of a statute that expressly provided for mandatory attorneys' fees, such as the statute in this case (Item 47, p. 10).

Furthermore, the Second Circuit reversed the district court's refusal to award attorneys' fees incurred on appeal in Weitzman, explaining that "In order to avoid extending this already prolonged litigation, [it was] also directing the district court to grant fees and costs for this second successful appeal." 98 F.3d at 721. This precedent strongly suggests that the Second Circuit views its own mandate to award attorneys' fees to include those fees incurred on appeal. The court concludes that plaintiff is entitled to seek compensation for attorneys' fees incurred in its appeal, and that this court has the jurisdiction to include these fees in its total fee award.

Defendant has challenged the reasonableness of plaintiff's request for attorneys' fees incurred on appeal raising several objections. Specifically, defendant argues that the number of hours spent by plaintiff's attorneys, including its in-house counsel and both outside firms, was unreasonable and duplicative (Item 44, pp. 17-21). Defendant notes that plaintiff claims that its eleven attorneys, three paralegals, and eleven law clerks spent a total of 1,012.75 hours working on the appeal. In addition, defendant contends that plaintiff should not be reimbursed for the hours claimed by its in-house counsel because they are not supported by contemporaneous time records (Id., pp. 21-22). Finally, defendant argues that the rate charged by LeBoeuf, Lamb for the work of its paralegals and law clerks was unreasonable, and therefore, the court should reduce the amount recoverable for such work (Id., pp. 24-26).

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